SZBRB v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT (revised from transcript) 1 As in other cases in which I have sat this week on appeal from the Federal Magistrates Court, there is an apparent misunderstanding about the role of the courts in these migration cases. In very general terms, Australian migration law provides for a two stage process. The delegate of the Minister considers an application for a protection visa and if the applicant is unsuccessful, he or she may appeal that decision and have a hearing before a body especially set up for that purpose which, in a case like this, is the Refugee Review Tribunal. The Tribunal can look into the merits of the case and examine questions of fact such as those that the applicant sought to raise before this court today concerning the situation in her home country. 2 Once the Tribunal has made a decision, it is capable of being reviewed in a court, but only on limited legal grounds. There is no right of appeal to a court on any general basis. Moreover, the law quite clearly does not permit a matter that has gone through the courts and has been concluded to go through the courts all over again. Were it otherwise, of course, cases could never achieve any finality. So, as in this case, when matters that have already been dealt with come before the court again, as happened here, the Court is likely to strike them out as an abuse of process. 3 In this case, the applicant applied to the Federal Magistrates Court on 22 August 2005 seeking orders by way of judicial review of a decision of the Tribunal made on 25 August 2003. In that decision, the Tribunal affirmed the decision of a delegate of the Minister, made almost a year earlier, refusing to grant a protection visa to the applicant. 4 When the present proceeding came before the Federal Magistrate on 12 December 2005, he was asked to dismiss it on the ground that it was an abuse of process. The Federal Magistrate looked carefully at the history of the proceedings (at [9]-[13]) and noted that they were an attempt by the applicant to challenge the decision of the Tribunal that had already been the subject of challenge in the Federal Court. 5 It seems that on 17 October 2003, the applicant had commenced proceedings for judicial review invoking, as the Magistrate put it at [9], the same jurisdiction as in the present application. This earlier application was dismissed by a Registrar when neither the applicant nor her legal representative appeared. 6 The applicant then applied to the Federal Court and also sought reinstatement of her application in the Magistrates Court. That appeal was eventually dismissed by consent with costs and the reinstatement application came before Raphael FM on 28 April 2004. Raphael FM refused to reinstate the application and published his reasons. The applicant then appealed from the decision of Raphael FM to the Federal Court, but a notice of discontinuance was filed on 24 June 2004. However, 14 months later, an application was made to the Federal Magistrates Court to challenge the same decision of the Tribunal. The Federal Magistrate correctly observed his reasons for judgment at [23] that it would not be in the interests of justice to permit that new application to continue. 7 The Federal Magistrate noted the grounds relied upon in support of the application and was satisfied that none of them was well founded and, taking into account all the circumstances, he considered the matter to be hopeless and concluded that it ought to be struck out as an abuse of process. 8 In an application for leave to appeal, which is necessary because the decision was interlocutory in nature, the applicant has relied upon a document which I believe she does not understand, and which has been prepared for her by somebody else with some familiarity of legal terminology. I have looked at that document but it does not take the matter any further. There is no reason why leave to appeal from the Magistrate's decision should be granted. 9 As I have endeavoured to point out to the applicant, the law does not allow matters to be re-litigated once they have been concluded and, in any event, there seems to be no basis for concluding that there ever was any relevant error on the part of the Tribunal. In those circumstances, the application for leave to appeal must be dismissed. 10 The application for leave to appeal will be dismissed with costs, which I fix in the sum of $1000. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.